The Fourteenth Amendment

0:00Okay, here we are for number four of these, and this one is on the 14th Amendment. I think this is the most difficult one of all ten of them this week, because this is a difficult issue for people of our persuasion to deal with. I am going to take a position on this issue, but it's not one that I think is reached easily, but I'm going to argue for it, and I don't think that if you disagree with me

0:58How is a layman you can possibly hope to form an opinion on this when informed scholars on both sides of this debate seem on the surface of it to make such persuasive claims? Well, let me begin by reading the 14th Amendment, Section 1, because that's the section where most of the controversy has arisen. Actually, I think for that reason I might instead just get the rest of the amendment out of the way and then we'll spend the rest of the time focusing on Section 1. So, Section 2 of the 14th Amendment, most of these sections, Sections 2, 3 and 4 are not of ongoing significance to us because Section 2 involves penalizing the states for withholding suffrage from the freed slaves and it's going to proportionately decrease their representation to the extent that they do this.

1:58Well, that provision is superseded by the 15th Amendment two years later. The 14th Amendment is declared ratified in 1868, 15th and 1870. So that one's no longer pertinent. Section 3 says, no person shall be a senator or representative in Congress or elector of president and vice president or hold any office, civil or military under the United States or under any state who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or give an aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each house remove such disability.

2:43Well, again, that's not relevant to us today because nobody who took part in the Southern Confederacy Section 4 simply upholds the validity of the public debt of the United States and repudiates the Confederate debt. Well, again, I don't think that's terribly relevant today because I don't think anybody's walking around with a Confederate savings bond and the Federal Savings Bond expecting to cash it in. So we're really focusing on section one of the amendment. So section one reads, All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

3:37We'll take that sentence first. This sentence is taken as overriding the Dred Scott decision, The Dred Scott decision, at least part of the Dred Scott decision of 1857, in which Supreme Court Chief Justice Roger Taney had in effect dismissed Dred Scott's claim to freedom because he argued that Dred Scott, by virtue of being of African descent, was not an American citizen and therefore had no standing to bring a suit in the Supreme Court. But according to Section 1 of the 14th Amendment, all persons born or nationalized in the United States The second sentence of Section 1, this is the one that has been the occasion of all the controversy. It reads, No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

4:29Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Now, on the face of it, that's about as unobjectionable statement as you could ask for. However, what has arisen ever since the drafting of the amendment, but really in the 20th century, is a debate over what exactly that very legalistic-sounding sentence was intended to do. And there are scholars on both sides, or actually more than two sides of this issue. On one side you have people like the recently deceased Raoul Berger, who was a professor at Harvard Law School, who wrote a book called Government by Judiciary, which is a long book but is worth the read.

5:26If you don't have time to read Government by Judiciary, you should at least read his shorter book, much shorter book, called The Fourteenth Amendment and the Bill of Rights, because that contains a lot of relevant argumentation. And I think that Berger, there's nothing more fashionable, or there's only a few things in legal circles more fashionable than to dismiss Berger's scholarship. But it's actually quite good if you go into it without any particular axe to grind. It's quite good, and he makes a very persuasive argument, that the 14th Amendment in fact was intended to be very modest in scope. It was not intended to bring about any kind of revolutionary change of the constitutional order, but rather had a very modest intent. And in a moment we'll get into more detail about that modest intent, but just for right now, It was intended to protect at least the most basic and fundamental rights of the freedmen in the wake of the abolition of slavery.

6:23In addition to Berger, there's Charles Fairman, whom Berger cites at great length in his scholarship. On the other hand, we have people like Michael Curtis, who since the 1980s has argued to the contrary, that in fact the 14th Amendment had a much broader and more sweeping intent. And Curtis puts forth the suggestion that the Fourteenth Amendment was not merely this limited, modest, finite proposal that Berger suggests, but rather that it was intended to incorporate the Bill of Rights in such a way that they would apply to the states. Originally, the Bill of Rights were understood to apply not to the states, but to the federal government.

7:13And we can see that in the wording of the Bill of Rights in, for example, most obviously in the First Amendment. The First Amendment of the U.S. Constitution does not say, Massachusetts shall make no law. You know, that would interfere with freedom of speech or press or religion. It says, Congress shall make no law. That was the understanding that the states, given that at the time the First Amendment was drafted, you had all different kinds of states. You had some states that had full religious liberty, like Virginia or Pennsylvania. But you also had states like Massachusetts that had tax-funded church establishments. How are you going to have a common religious policy with such disparate states? Well, the answer is you just simply leave the federal government out of the matter.

8:00Federal government adopts a completely non-interventionist policy. That's what the First Amendment was intended to do. And that was the mainstream opinion throughout the 19th century, was that the First Amendment and the First Eight Amendments to the Constitution were restrictions on the Federal Government that did not apply to the states. Now, of course, the states themselves have their own state constitutions, which typically would provide these very protections. But the idea was that the Federal Bill of Rights protects us against only the Federal Government. This position, that the Bill of Rights originally was intended to apply only to the Federal Government, receives sanction not only in the text of those amendments, and not only in the fact that Madison himself favored applying them to the states, but was overruled, we have that.

8:51Also in the case of Barron v. Baltimore in 1833, John Marshall made clear that that was the consensus. had Congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection for the exercise of power by their own governments in matters which concern themselves alone, they would have declared this purpose in plain and intelligible language. So, in that case, Marshall is making clear that the text of the Bill of Rights in no way indicates that they would apply to the states and that if they had been intended to, they would have been written in such a way that that would be obvious. Well, according to Michael Curtis and his work on the Fourteenth Amendment, the Fourteenth Amendment changes this constitutional order, takes those amendments in the Bill of Rights and applies them to the states so that from the time of the Fourteenth Amendment onward, And if we take the first amendment onward, now the states also are bound by the first amendment and like amendments.

9:54There is some controversy as to how many of these amendments were intended to be applied to the states. Would the second amendment apply, for example? But the point is that particularly the first amendment was being applied to the states now. And that the federal government, therefore, could enforce these rights against an offending state government. Now, even that does not sound particularly objectionable, because, you know, why should the state governments have the power to interfere in these types of people's rights, and shouldn't there be some kind of oversight? Well, those questions we can save for later, but for now, the scope of the argument is this. If this is true, if Curtis is saying it's true that the 14th Amendment, in fact, was intended to apply the Bill of Rights to the states, In the United States, then it does amount to a very radical change to the constitutional order because it dramatically increases the police powers of the Federal Government.

10:46It gives it a pretext, a multiplicity of pretext for intervening in the life of the states, presumably in the name of upholding individual rights of the Bill of Rights. Now these folks have gone back and forth arguing with each other, particularly Berger and Curtis for years until Berger's death.

11:36in line and just look at them and say, how can I possibly figure out which side is correct? Well, my own instinct is that Berger is correct, but I don't by any means put that forth to you as an infallible statement. I could be mistaken on this and I have no particular stake in this one way or the other. I think Berger is right, but the major argument that's made by the Curtis side is that if you look, for example, Let's take an example at the major drafters of the amendment, particularly Congressman John Bingham of Ohio. And you look at what he said. According to Curtis, it's quite clear that Bingham did intend the 14th Amendment to apply Bill of Rights protections to the states and to give the federal government the power to enforce them against the states.

12:24The counter to this is that if you actually read Bingham's collected statements on the matter, he's an extremely confused and contradictory fellow. For example, Charles Fairman describes Bingham as a man of peculiar conceptions, an ardent rhetorician, not a man of exact knowledge or accurate language. Alexander Bickel says Bingham was not normally distinguished for precision of thought or statement. Another scholar, Wallace Mendelson says Bingham is one who used ringing rhetoric as a substitute for analysis. Leonard Levy says Bingham was extremely confused and contradictory in his presentation. So the typical reply to the claim that, well, you know, Bingham says when he wrote the amendment, He wrote the amendment. He intended it to have this sweeping effect.

13:17Often times the response to that is that given that Bingham is such a confusing and difficult to follow thinker, if you're going to engage in a dramatic revolution in the structure of the federal government, you can't do it on the basis of somebody whose own thought is so internally inconsistent and difficult to follow. It has to be crystal clear, or otherwise you have to presume, you have to basically be conservative unless there's overwhelming evidence to the contrary. There does appear to have been, though, and this is one of Berger's arguments, a widespread understanding that the Fourteenth Amendment was simply codifying the terms of the Civil Rights Act of 1866. The Civil Rights Act of 1866 had been passed because of concerns that now that the slaves were freed, they might not have all of their rights as freemen fully respected.

14:11And so the federal government wanted to protect them, even against the state governments. And in particular, the Civil Rights Act of 1866 was looking to protect the freedmen when it came to such matters as being able to enter into contracts, particularly labor contracts, freely, and not being coerced into them, or the right to be able to travel freely throughout the state, or the right to be able to vindicate your rights by having use of the court system, or the right to hold private property. These fundamental basic rights were being upheld on behalf of the freedmen in the Civil Rights Act of 1866. Why would the 14th Amendment in effect codify that? Well, certainly one possible reason is that what if the Civil Rights Act of 1866 were found unconstitutional?

15:01Well, now you'd have the 14th Amendment there that would give constitutional backing to these kinds of protections. So that's basically to protect the Civil Rights Act from constitutional challenges by actually enshrining it in the Constitution. So this is basically the Berger position. What we see here is not a dramatic attempt to overturn the relationship between the Federal Government and the states, giving the Federal Government dramatic oversight power over the states. It really was intended to give the Federal Government a relatively minor oversight power over the states, just when it comes to the most basic rights of the freedmen. And we see that in some of the contemporary testimonies.

15:46We see quotations from one congressman after another saying that this is in fact what we're doing, that the Civil Rights Act of 1866 and the 14th Amendment are for all intents and purposes identical. Now, with the passage of time, this Article 1, by 1925, is being interpreted in the Broadway. In the first 50 or 60 years of its existence, the 14th Amendment was interpreted more or less as Berger claims that it should have been interpreted. It was interpreted very narrowly, not as granting major oversight of the states, but relatively minor. So you had a relatively conservative Supreme Court that interpreted the Fourteenth Amendment relatively conservatively, although they did sometimes intervene, like in the Lochner case, but we'll just stick to this point right now.

16:44For example, shortly after the Fourteenth Amendment was ratified, or was declared ratified, Something called the Blaine Amendment was proposed. The Blaine Amendment said the restrictions of the Bill of the First Amendment should be applied to the states. Now, an argument that Berger might make would be, if the Fourteenth Amendment had been intended to apply the First Amendment to the states, why would anyone have bothered to propose the Blaine Amendment, which does that very thing? Why would it affect the same Congress, in large part, that drafted the Fourteenth Amendment? Why would they also draft the Blaine Amendment, if they had intended the Fourteenth Amendment to fulfill that function?

17:29So this would be evidence that the Fourteenth Amendment had originally been intended not to do any such thing, or otherwise it would have been absurd to propose the Blaine Amendment. But by the time you get to 1925, you begin to get, coming from the court, a doctrine that becomes known as the Incorporation Doctrine, which argues that the 14th Amendment incorporates the Bill of Rights protections against the states. And that first arises in a case in 1925, Gitlow v. New York, which is a case involving a fellow who was a communist, And he'd gotten in trouble with the law in the state of New York, which had in effect a law that prohibited somebody from advocating the violent overthrow of the government.

18:14And this fellow did advocate the violent overthrow of the government, so they prosecuted him on the basis of this law. And he appealed to the Supreme Court and said, hey, they're violating my free speech rights. Well, the Supreme Court agreed that, in fact, the right of free speech was a right that the 14th Amendment intended to apply against the states and that the federal government could in effect enforce it on the state governments when they went astray and did something like this. So that's where it starts to appear, and then the doctrine really begins to get legs, as it were, in succeeding decades, where you get a kind of full-blown theory of incorporation.

19:01There's no absolute consensus, even into the 50s and 60s, about incorporation. You do get some legal scholars who say that this doctrine seems to come out of nowhere. This doctrine seems to be being employed by Supreme Court justices Today, to question the incorporation doctrine would be

19:33incredibly idiosyncratic, and it just wouldn't be done. It would be like saying that the federal government doesn't have the power to build highways because it's not listed in the constitution. That's what Jefferson believed. But if you said that today, they'd They either say, thank you Congressman Paul for showing up, or they say, you know, we're not interested. Okay. Now the reason I say that this is a difficult issue for libertarians is that, of course, part of a libertarian wants to do this, wants to use the federal government when possible for the sake of preserving liberty and for going after, you know, terrible decisions and oppressions of the state governments because of course the state governments are not perfect by any means.

20:25They're corrupt and they're criminal and all that. Yet there are difficulties that are associated with this. So I'd like to look at some of them. Let's first look at the issue of the ratification of the Fourteenth Amendment If the 14th Amendment could be enforced by angels, then I might support it. If it could be enforced by angels, or at the very least, people whose view of rights is the same as our view of rights, then I would almost not have a problem with it, or I'd have much less of a problem with it. The difficulty is that people who are on the Supreme Court or on these federal courts, to say the least, don't necessarily have our same view of rights.

21:14So when they say, oh, we're just intervening to uphold the Bill of Rights in the states, well, their interpretation of the Bill of Rights is not always yours. As we'll see, there was a time in the 1970s where the Supreme Court almost found that the Constitution contains a guaranteed minimum income for all Americans as a right. So if you're going to say, well, you know, we need somebody to keep the states in line, so let's go with the Supreme Court. Again, be careful. As I say, in strict theory, if the Supreme Court had angels on it, that might be a good idea. Let's first take a look at the ratification of the amendment, because this is a matter of controversy that got me into a lot of trouble for raising it in the Reconstruction chapter of my American history book, but I'm only repeating a totally mainstream interpretation.

22:13The argument that the 14th Amendment was not constitutionally ratified. The old National Review used to just take this for granted. Old conservative publications, libertarians, all understood this. In the 1950s, U.S. News and World Report published an editorial saying, of course we all know the 14th Amendment wasn't legitimately ratified. This was just sort of common knowledge. Now I say it today and I get Max Boot saying, There are a few factors to take note of when we look at the ratification of the 14th Amendment. First we have the fact that the amendment was proposed in Congress and two-thirds of the people present voted to approve the amendment. And then it gets sent out to the states, and then three-quarters of the states have voted to approve the amendment.

23:05Well, one thing we can note about the passage of the 14th Amendment is that it was not, shall we say, entirely without blemish. At the time that the amendment was set to be voted on and discussed, John P. Stockton was a newly elected senator from New Jersey, and he was known to be an opponent of the 14th Amendment. John P. Stockton was a newly elected senator from New Jersey, and he was known to be an opponent of the 14th Amendment. He duly took his seat in the U.S. Senate at the beginning of the 39th Congress. Well, informal canvassing of senators made quite clear that there was no two-thirds majority in favor of the amendment at that time.

23:53In fact, it turned out that the amendment would have been one vote short of passage. So, a motion was introduced not to seat John Stockton. But he's already been seated. This is the problem. He's already been seated. So you can't really vote not to seat somebody who has been seated. If he's been seated and you want to get rid of him for one reason or another, you have to vote to expel him. But expulsion requires a two-thirds vote. They didn't have a two-thirds vote to expel them. So they voted not to seat somebody who had already been seated. I mean, it's sort of like, how can something be both A and not A at the same time and in the same manner?

24:39So they voted not to seat this man who had already been seated. And then they went ahead and voted to approve the Fourteenth Amendment. Now that's really not legal, it's not a proper procedure, but that's actually the least of the problems associated with the amendment. Then it goes out to the states. Now Tennessee ratifies the amendment, but here's how Tennessee ratified the amendment. The problem that was occurring in Tennessee was that opponents of the amendment were refusing to show up at the state house and thereby preventing a quorum. You have to have a certain minimum number of people present in order to conduct business. Well, opponents of the amendment thought one way to prevent its ratification is just not to show up, and then they wouldn't have a quorum. Well, in order to get a quorum, two of the anti-amendment Tennessee legislators were actually kidnapped and forcibly brought to the State House and declared to be present so that the vote could take place.

25:38Now, there are some sticklers, you know, who think that kidnapping is immoral, you know, who would throw, you know, some doubt on this, the legality of this. And the thing is that when the House Speaker called the roll, well, these two representatives refused to answer. They refused to say they were present because in their mind they weren't, spiritually they weren't present. They were only there, you know, under duress, I mean, really by force. In Oregon, there was a situation that was at least as irregular as that one. In Oregon, you had a case where the legislature of Oregon voted on the amendment, and they voted to approve the amendment. But then it was discovered that two of the Republicans who had been elected in Oregon had actually not been legally elected.

26:24When they actually looked again at the votes, it turned out that, The Republicans who had been elected in Oregon had actually not been legally elected. When they actually looked again at the votes, it turned out that Democrats had been elected in those two seats. So two Republicans were removed and replaced by two duly elected Democrats. So some people thought, well, we should re-vote on the amendment now that we have the legitimately elected people present. This time they voted not to approve the amendment. But they were told by the federal government, sorry, we take your first answer. New Jersey, now New Jersey and Ohio, the irregularities there are, it's not quite so clear cut, I mean obviously in Oregon there's no excuse for that, and in Tennessee there's obviously no excusing that.

27:10New Jersey and Ohio is not quite so clear cut, but arguably there's at least some kind of irregularity here, because both of these states rescinded their ratifications, and they rescinded them though, before the amendment went into effect. I mean, you could argue that if the amendment has already gone into effect, and then you vote to rescind your ratification, it is probably too late, but arguably, they may at least have had some right to withdraw, but they were told once again, sorry, we take your first answer, and New Jersey in particular, at the time that they attempted to withdraw their ratification, they actually announced, they said that, we are fearful that this amendment has been worded ambiguously with deliberate intent, So that, in the future, it can be used to deprive us of our liberties.

27:58Very interesting. Well, the most fundamental reason, though, that there was an illegality involved here, is that here you have the southern states, which they ratified the 13th Amendment in 1865, abolishing slavery, no one had any problem with the men. 1867 rolls along, the radical Republicans in Congress, who are the wing of the Republican Party, The Republican Party who favor a very harsh settlement with the South. Now that they're in power, in 1867 they declare, other than Tennessee, they like Tennessee because Tennessee ratified the 14th Amendment, but other than Tennessee, the other former states of the Confederacy, the other ten states were declared in 1867 to be illegal, without legal governments. And they're going to be militarily occupied, they're going to be divided into five military districts,

29:17And you can't ask them to ratify an amendment to the Constitution, because they're not legal states. You may as well ask France to ratify an amendment to the U.S. Constitution. It would be perfectly irrelevant. So in other words, you're depriving them of all the privileges of statehood, but nevertheless you're going to impose on them one of the burdens of statehood. You're going to actually demand that they ratify an amendment to the Constitution, when you yourself have just said they're not even legal. The states as constituted in the South are not legal. So it's been argued that therefore their votes could not have counted. In no way could an illegal state, by definition, that vote for the amendment be counted as a vote in favor of the amendment. That's not to mention the coercion involved here. There was one congressman who said that when the Fourteenth Amendment was sent out to the states, Tennessee approved it, but the other ten southern Confederate states rejected it.

30:11The Northern Congressmen who said, well, the Southern states have rejected the 14th Amendment, so we're going to march upon them at bayonet point until they do ratify it. Well, most legal principles would have it that a decision that you're forced to make under duress is not legally binding. So we have that difficulty as well. And for these reasons and even several others, very recently, like early 1990s, As far as McDonald concluded that the 14th Amendment was never constitutionally ratified. Now, Forrest McDonald is not some wacko lunatic. I mean, he's received countless honors. He's a Jefferson lecturer of the National Endowment for the Humanities. It's like the highest honor you could get. He's not a nutcase. He's repeating what was kind of a standard view for a good long time.

30:58He repeated this position and lays out the evidence for it in an article that appeared in the Georgia Journal of Southern Legal History. and Legal History and it's well worth reading. It's very useful and I give you the exact citation on it. So we have this, you know, very, I think pretty strong case that the amendment is not constitutionally ratified. We'll return to what the implications of that are. What I'd like to do at this point is look at where in recent years the Fourteenth Amendment has gone. And in at least some cases, I'm grateful to the work of Jean Healy, who is with the Cato Institute, Mises Institute, and most of them are very, very pro 14th Amendment.

31:53Healy has been a source of skepticism about it. And if you want to get a good overview of Healy's thinking on this matter, on the Mises Institute website, there is a link to unpublished working papers. And if you go through the working papers, you do a little search for Healy. It'll bring you right to that paper. It's excellent. I mean, he needs to publish this and do more with it. But Healy raises some serious objections by, for one thing, pointing out what the amendment has actually been used for. I mean, let alone, forget about all the sugary saccharine language about we're going to protect people's rights and this and that. What has it actually been used for in practice? Well, for example, and I cite this in my reconstruction chapter, in the case of U.S. versus Yonkers, You had a federal judge who demanded that the city government of Yonkers had to build basically scatter site public housing throughout Yonkers so as to bring about racial integration in the schools.

32:59Now that, you know, I know there are people in Washington DC who don't think there's anything wrong with that but this is sort of disruptive to normal community life to have this sort of thing be done and to require that people pay for this. But this was done so as to bring about equality in the schools, supposedly. And if Yonkers did not comply with this, the court imposed a fine, a non-compliance fine, that would have bankrupted them within three weeks. And that was done in the name of the 14th Amendment. Now, you have to ask yourself, did anybody, whoever it was, even Bingham, did anybody ratifying the 14th Amendment think it would be used for this purpose? The question answers itself. Then you have the case of Missouri versus Jenkins, where the Supreme Court declared that a federal judge had the power to order a local government to increase property taxes for the purpose of furthering integration and allowing for busing or whatever other purpose,

34:00even if such a tax increase was actually barred by the state constitution. A federal judge could override that. and that's all in the name of the 14th Amendment, so as to grant people the equal protection of the laws and so on and so forth, whatever phrase they're going to refer to there. Now Healy anticipates an objection here, he says, and I understand libertarians will come back with, well serves you right for having public schools in the first place, you know, of course the government is going to want to regulate them and serves you right, you shouldn't have them. But he says, well, wait a minute. Take what happened in Prince Edward County, Virginia in the 1960s. They refused to assess taxes for the schools and they shut them down altogether. And the court in 1964 ordered the county to raise the taxes and reopen the schools in the name of the 14th Amendment.

34:55So, yet again, here you have the 14th Amendment being used for a purpose that is obviously not compatible with a classical liberal understanding of government. Healy likewise points out that when the Virginia Military Institute was forced to abandon its male-only admissions policy, rather similar to the Citadel in South Carolina. You might think, well, it's a public institution. They should be forced to admit anybody they want. Well, one possibility was that the Virginia Military Institute could have just become private, and then maybe the 14th Amendment wouldn't have applied to them, but they bore in mind this precedent whereby in the 1960s, When Virginia closed down its schools and just, in effect, had a private school system at that point, they were ordered to reopen them on the basis of what the court wanted, and the VMI people were afraid this would be done even if they went private.

35:58You know, maybe the court could intervene in a similar way and demand that they return to the previous public situation. So we have here cases that are at the very least disturbing from a libertarian point of view. We then have the fact that David Bernstein writes that during the Warren Court era, liberal legal scholars hoped that the Supreme Court would even find a right to a minimum income in the 14th Amendment. Had it not been for the Nixon administration's appointment of several new, more conservative justices, the Supreme Court might very well have entrenched the American welfare state in the morass of modern constitutional law. Now of course the irony here is that the Nixon administration favored a minimum income as part of their domestic policy.

36:43Nixon was notoriously bored to death by domestic policy. He used to say that the American economy is so strong it would take a genius to wreck it. So it could basically run itself and the president really should be dealing with foreign policy. Probably sound given that every time Nixon did deal with domestic policy it was terrible, like wage and price controls. I mean, my gosh, take your own advice. Let Nixon be Nixon. Let him deal with the other stuff. Actually, don't even let him deal with that, actually, as a matter of fact. He's not good at either one of them, come to think of it. But, yeah, Nixon's Family Assistance Program had actually seriously proposed a guaranteed minimum income for all Americans, for heaven's sake. So that came very close to happening. So the reason that there has been some libertarian concern about the Fourteenth Amendment is that, of course, on the surface it sounds wonderful, but in practice, In practice, there are human beings with agendas who are employing the Fourteenth Amendment

37:38and they're taking some of these phrases in it and using them as loopholes to drive trucks through to apply all kinds of undreamed of measures to the states, by no means all of which are compatible in any way with liberty. Now, in California has been the subject of all kinds of Fourteenth Amendment difficulties in recent years. In 1996, California, as you all know, has been having budget problems forever. What other explanation can there be for the fact they voted for Arnold Schwarzenegger to be their governor? Maybe they think that he can use some of his movie hero tactics to cut the budget or something. No one knows what to do in California anymore. They've all gone crazy out there. Is anybody here from California? Yes, I knew it. I knew I was going to regret saying that.

38:27But I'm sure you agree with me. There's definitely something not quite right out there. Well, these poor folks, they're trying various things and the Supreme Court keeps, or some Federal Court keeps intervening largely on 14th Amendment grounds. For example, in 1996, the California government wanted to respond to the fact that because they have relatively high welfare payments, a lot of people from around the country were moving out to California for the express purpose of going on welfare there. The California law was passed in 1996 that said that if you come to California and you go on welfare, the first year you're on welfare you are restricted to whatever amount you would have received in your state of origin. But then in subsequent years you get all the full benefits of California welfare.

39:15Well, this obviously, I mean, this is just like the Nazis, right? It's incredible that anyone would even think of doing something like this. And sure enough, the court declared that this was to be struck down. This California law was to be struck down. So in effect, what the court is saying is, in effect, you're going to have to raise taxes to pay now the higher welfare benefits. So you've got courts in effect imposing taxes. 14th Amendment grounds because they say that it violates the right to travel. Because if I can't get the full California welfare benefits, then my right to travel is being impaired. See, this is where it goes. Like again, you think, oh well, this is wonderful, we'll just force the states to be nice to people.

40:01The problem is you have stark raving lunatics enforcing this thing. That's the problem. If you had angels, it might be another matter. Then there was the notorious, two years earlier than that, 1994, there was the notorious Proposition 187, California, dealing with the immigration problem. I read about a month ago that Arnold Schwarzenegger had said at one time, we need to, he said very recently, we need to build a fence and stop the illegal immigration thing, and then in like three seconds there was such a huge outcry, and he said, oh, no, no, my English was very bad, I didn't mean build a fence, I meant welcome people with cakes, that's what I meant. Sorry, you took it as offense. I'm sorry. Well, anyway, the problem in California was that they have so many illegal immigrants coming in that they're using public services and they're using hospitals and getting free services, racking up a $30,000 bill and then they can't pay it and then the state is going bankrupt.

40:53How do we deal with that? So Proposition 187 would have said that if you are an illegal immigrant, Well, I'm sure some of you remember that at the time this was proposed, every fashionable person in the country, on the left and the right, denounced it. Jack Kemp, Bill Bennett, went out there and told these people, don't you do this, and all the leftists were against it, whatever, even some libertarians were against it, and I thought, well, here's something that actually cuts the budget. Why would you be against it? Like it cuts the budget, right? Well, it passed. It passed. It passed. I don't think I even need to ask, do you think people who drafted the 14th Amendment were thinking that we're going to give the people who drafted the 14th Amendment the right to pass?

41:38I don't think so.

41:44Somebody who is illegally in the country is equally entitled to free stuff as anyone else. That's the argument that's made. Now, I don't think I even need to ask, do you think people who drafted the 14th Amendment were thinking that we're going to give absolutely free services to people like everybody is entitled to it as a matter of human right? And even if you're not in the country legally, the question answers itself. Well, one of my favorites was California passed a measure in effect abolishing affirmative action in state university admissions. Well, that's, you know, it's not really directly a libertarian issue. It means there are state universities and, you know, that sort of complicates the question.

42:29But what's significant is that immediately the Clinton Administration Justice Department intervened on 14th Amendment grounds to try to get that overturned. Now let's pause and understand what is happening there. What's being done in that measure is we're saying that we're not going to give special privileges to members of different racial groups or give them special consideration in admissions. We're going to view people on the basis of merit alone and treat all the races equally. Well, isn't that what the 14th Amendment calls for, equal protection of the laws? But yet in the name of the 14th Amendment, the Clinton administration justice department intervenes and says We need equal protection of the laws, so you need to re-establish a racial quota system.

43:15So in other words, the Clinton administration is calling for more or less the exact opposite of the equal protection of the laws. They're calling for a racial caste system and racial preferences, as if that's what the 14th Amendment calls for. But it was in the name of the 14th Amendment that they did that. Well, this goes to show how out of control the amendment is. Now, you may well say, well, these are all very regrettable, but nevertheless, it's still better to have the 14th Amendment than not to have it. Well, that's a legitimate position, but we should at least be aware of where the thing can lead. Well, I'd like to return to Healy again, because I think he raises some interesting points that can guide us in our own thoughts on this matter.

44:00And he begins his argument by recalling the Lysander Spooner position that's come up a couple of times over the past couple of days. Spooner was a 19th century thinker who believed that in the absence of consent authority is not binding on an individual. So in politics, for example, that means that unless I have myself expressly consented I never signed the Constitution. I never gave any express consent to it. And you cannot conclude simply on the basis of my living here and enjoying the advantages of this place that I'm giving some kind of formal consent. I'm not. Consent is consent.

44:45We know what consent means from every other aspect of human life. And so Spooner comes to the radical conclusion that the Constitution is not binding on people The Constitution is not binding on people because none of us were involved in drafting it or signing it or whatever. And in the absence of a unanimous consent, you cannot apply the Constitution to every single person. Well, what Healy says is that in reality, of course, as Spooner himself acknowledged, this kind of consensus, a unanimous consensus, is not going to occur. Spooner acknowledges this, and this is why he argues the way he does, that since you can't get this type of consent, then typically government is not legitimate.

45:35Obviously other political thinkers have not been willing to take such a radical step, but Spooner does. Healy says that we realize that we're not going to get absolute universal consent to a government. He said, but the next best thing, in the absence of that, if we are going to live under a government to which we haven't given our individual consent, then the next best thing we can live under would be what Healy calls constitutional consent. And so that is that he says that the theory of the Constitution is that the people of the states hold the power, and they delegate some of this power through their state to the federal government. And they can amend the Constitution through two-thirds of the Congress and three-quarters of the states.

46:22And this is at least some way that at least a portion of the people can give their consent to the order under which they live. That's at least some kind of substitute for consent. That's at least the second best thing. If you have to live under a coercive state, then at least you can have some kind of consent being granted, says Healy. So this is where his argument is going. So he says, therefore, that this helps us to understand what we should think about the 14th Amendment. Because he says that, given that the 14th Amendment was not constitutionally ratified, and therefore does not enjoy any kind of constitutional consent, it is not the fruit of freely given consent on the part of the people, that has to influence the way we interpret the amendment.

47:12Because he says that we should interpret the Fourteenth Amendment as narrowly as possible. Regardless of how all these debates between Raoul Berger and Michael Curtis come out, whether the Fourteenth Amendment was intended to be this broad or this broad, doesn't matter in effect, says Healy, because given that it wasn't legitimately ratified, but given that we do want to live under a regime in which we give consent to how we're governed, we never gave consent, legitimate consent to this amendment, Then, therefore, justice demands that it be interpreted as narrowly as possible. I think that's an interesting way of thinking about it. Now, the other way of thinking about the 14th Amendment would be the kind of approach that you get from Bruce Ackerman of Yale University.

48:01Ackerman would say that you don't always have to have amendments to the Constitution The Constitution or legitimately ratified amendments of the Constitution in order for the constitutional order to legitimately, legitimately to change. He says that in history there are moments, there are constitutional moments that occur where there is such an outpouring of popular support for expanded federal powers that it renders the formal amendment process unnecessary. You can just say, you know what, I'm having a constitutional moment. We're all sort of mystically giving the federal government new powers. It's a constitutional moment. He says, for example, the New Deal in the 1930s, Franklin Roosevelt supposedly trying to get us out of the Depression. He's doing things that are obviously not authorized by the Constitution, but that's okay, says Ackerman, because, guess what? That was a constitutional moment.

48:53Now, where this goes, I think, is obvious enough. How would you control a government like that, that could always just claim, Well, maybe you don't like what we're doing, but guess what, my friends? You know what time it is? Constitutional moment, baby, OK? Same thing would apply to the 14th Amendment. Forget about the ins and outs of how it was ratified or whatever. It's a constitutional moment. Jump on board. Get with it. And Healy is arguing that this is not a legitimate perspective, because given that, again, we can't live under the spoonerite view ...where everybody gives his consent, at least in the short run that's not going to happen, he believes the next best is constitutional consent, and given that in no way can it be said that that was granted through the procedures of the Constitution, then we cannot proceed as if the Fourteenth Amendment is a broad, radical reconstruction of the constitutional order.

49:48That type of thing can be done only through at least some institutional form of popular consent, and that's lacking in this instance. There's an interesting statement by, of all people, Richard Posner, a sort of Chicago affiliated guy, who says, Please apply the Bill of Rights to the states through the Due Process Clause and you weaken the states tremendously by handing over control of large areas of public policy to federal judges. It is hard to believe that this was intended by all the state legislators whose votes were necessary to ratify the Fourteenth Amendment. And in fact, about 12 years ago, I was mentioning one or two talks ago, Professors Quirk and Bridwell, who wrote a book called Judicial Dictatorship in the 1990s, they noted that as of 1993, the courts controlled 80% of all state prison systems and about 33% of the 500 largest jails in the nation, and they said that the Supreme Court routinely overrules the actions of the local police, In the name of protecting rights, an enormous amount of discretionary power has been given to the Supreme Court that is very difficult to rein in.

51:03Sometime within the past two weeks, or maybe three weeks, there was an article that appeared by the Supreme Court of the United States, The enormous amount of discretionary power has been given to the Supreme Court that is very difficult to rein in. Sometime within the past two weeks, or maybe three weeks, there was an article that appeared by, it was co-authored by Walter Block and Stephen, don't you dare call me Stephen, Kinsella, who wrote an article on federalism on the Lew Rockwell website, in which they took, I think, a position that I'm drifting toward in my own thinking which is to say that if we say that the state has a right to do this or that we don't actually mean that in some abstract, you know, metaphysical sense they have a right to enact rent control or something but what we are saying is that given that the federal government has agreed to be bound by certain limits and to be bound by certain rules

52:01it's not unthinkable for a libertarian to demand that the government in fact bind itself by those rules and that let's say the federal government intervened on 14th Amendment grounds somehow to strike down New York's rent control laws. You know, on the one hand, you know, you'd have to cheer that because rent control laws are indefensible and evil. On the other hand, there's a concern, though, that you can't just look to the short run. I mean, as economists, you have to know that. You know, you can't just look to the short run. You have to think of the long run consequences for all of society, not just the short-run consequences in the housing market in New York and Block and Kinsella are voicing this concern. They say, if we as libertarians advocate that the Federal Government engage in an unconstitutional action to force New York to drop its rent controls because that result is a libertarian one, the immediate and accompanying cost is that we are advocating the principle that the Feds can disregard the Constitution.

53:03That means we are advocating getting rid of one of the few institutional features that, as a practical matter, does put some limits on the central state. And I think that's a very judicious way of thinking about this. It doesn't mean that we're vindicating the state's right to be stupid and destructive and evil, but rather that it can, in the long run, be counterproductive for the federal government to have so much power that it can intervene to correct things like this. Because, typically, given the type of people I think the tolerable outcome is that sometimes the states do awful things, but that the price of correcting them all is to empower a much less responsive and more difficult-to-control institution, and so that's why you have to understand that there's no perfect outcome.

54:01In the ultimate scheme of things, I have this hesitation about the 14th Amendment. It isn't that, boy, I sure hope Ohio goes and oppresses some people, but rather that I'm less trusting of, say, the Supreme Court or Federal Courts than are some of the lawyer types who have been condemning me on the Internet. I mean, of course, they put a lot of trust in these judges, but I don't. So that's why I think you can make at least a reasonable libertarian case for at least grave concern about the 14th Amendment and need for tremendous oversight over it now that we have it. Now I'm finishing rather early today so we can take, given that really these first four talks now that I think about it have really dealt with the states and the federal government.

54:50Government. So now as we close this up I'll be happy to take questions not only about this or comments like what your thoughts are on this because these are these are difficult this is not you know this is not an easy issue. On this or any other thing that we've done up to now I would welcome because every time we've ended there have been extra questions so now is your chance to ask the extra questions. Okay, yes. Would it have been a natural gift if the states had in fact intended to afford the bill of rights to apply to them, for them individually to amend their own constitutions rather than give all this power to the federal guerrilla?

55:43When the 14th Amendment, I think your point is a good one, because that would be the way to deal with it, is just reform of the states, one state at a time. The 14th Amendment is just filled with open-ended phrases that may have had a specific meaning when they were first written, but that today are totally detached from the original context, so you get phrases like equal protection of the laws, And that is used to justify federal courts taking over school districts, taking them over, shoveling kids around like concrete, imposing taxes on people, changing residential patterns in neighborhoods, forcing people to be bussed two hours a day, destroying local communities in ways like this.

56:29And that all comes from the seemingly harmless phrase, equal protection of the law. So, much better to see reform at a state by state level. and the analogy that I think of is with a national bank that if you don't like the way the state banks are behaving, the way to solve that is not necessarily to establish a great big national bank because maybe the great big national bank will do exactly what the state banks are doing. Why don't you reform the state banks? Why don't you do what, as Rothbard shows in his book Panic of 1819,

57:32The use of science of justification to strike down a lot of economically unsound state laws, like Lochner in the first view, wasn't that the case?

58:02The Fourteenth Amendment is a great protector of property rights. Let's use it to smash this or that. I totally favor... I want to smash this or that. You're right. I want to smash these things that impair the freedom of contract and are economically foolish. I want to smash this or that.

58:29Freedom of Contract and are economically foolish, but at the same time, I worry, I'm using this bludgeon right now, but who's going to use this bludgeon ten years from now? And when you consider that the type of people who tend to go into government tend not to be people who detest government. They tend to be people who like it, it brings them prestige and they like wielding power over people. In the long run, it seems to me that given the type of person you're going to wind up with, that bludgeon is going to wind up in very dangerous hands. I hear where you're coming from, but how do you get people in there who are going to make these reforms and make these changes, because it's either Republican or Democrat, third parties aren't heard, libertarians aren't heard.

59:26You know, how do you go about doing this? I mean, it seems like the more I see things happening, people are starting to take laws into their own hands. You know, the whole minivan project and stuff, but they're vigilantes. You know, the whole, I'm just joking. Yeah, I got that. Alright. I just see that happening more and people are becoming more and more aware who have never been aware of what's going on in the country and I think that's going to continue to be what happens. People are going to take it on to their own hands and we're going to have a real world within our own country before you know it. I just think it can come down to that.

1:00:19This is the question that comes up all the time, the strategic question of how do you advance your ideas in a world that doesn't even consider these proposals. The way I've always phrased it is that the establishment world, the Democrats, the Republicans, the New York Times, the Washington Post, They've got this view that as long as we're talking about, well, to what extent should we dictate to local school systems, or how much should we tax people, or how many, whatever. As long as you ask those questions, you're okay with how many countries should we bomb, or should we bomb Syria in three weeks or seven weeks, or should we announce that we're bombing them?

1:01:05That's all fine, but if you say, you know, maybe it's counterproductive, not to mention immoral to be bombing countries on false pretenses, or, you know, maybe we shouldn't be having an income tax, you know, then it's, that doesn't even get raised. I mean, then you're not staying on the three by five card. Now, I happened to be looking in the stacks, by the way, before coming in here, and I read, I was looking at Barry Goldwater's book, where he was talking about where he stands. What I found fascinating was, you get to the income tax, and he says, you know, I agree, here's Barry Goldwater, you know, extremism in defense of liberty is no vice. And there he is in his book, saying that the income tax, you know, we agree that the tax system needs to be reformed, but abolition is just being advocated by crazy people and that's not helping anybody.

1:01:59I thought, this is the big extreme guy? I mean, like he's afraid even in a book to talk about revealing the income tax? So, I don't know what the strategic answer is, like how do you actually bring these things about, or if it can be done, I'm not even sure. All I know is that I don't know how to do that. All I know how to do is this. So I figure I do this long enough, somebody figures out how to implement some of these things. That's sort of my thought, but we shouldn't give up because I know this is getting to be a cliché, but with the Internet, our ideas are actually much, much more widespread than they ever were. Much more than we could ever have expected 10 or 15 years ago, and it still isn't enough. isn't enough, but we're at least getting to be on the radar screen a little bit.

1:02:47And so that when whatever happens, the welfare state just collapses or there's a financial crisis or whatever, we've got as good a chance as any of getting out into the public realm legitimate responses to these things. I don't know if I even really believe what I just said there. Okay, I'll tell you. Okay. Let me start. How would or how does Michael Curtis explain the proposal for the Blaine Amendment?

1:03:37I honestly don't know how he answered or if he answers it, if it even comes up, but that's a good question. If anybody watching knows the answer to that, then email me or tell, you know, whatever, I'd like to know what the answer to that is. Okay, we'll go down this row coming from the back toward the front. Yes? This is a kind of weird counterfactual question. Okay. If we suppose that the Fourteenth Amendment wasn't passed, I mean, what effect do you think it's really had having been passed? You know how loose they are with the language, wouldn't they have just found some other justification to do whatever it is that they want?

1:04:32That's how they, for a long time, until finally even the Supreme Court in the 90s said this is a stupid argument, but the Gun-Free School Zone Act thing that said you can't have guns in a school zone, which like the states wouldn't have thought to keep an eye on that themselves. We need the federal government to say, you know, guns really shouldn't be in the school area. The argument for that was, to the extent that they ever have to appeal to the Constitution, they say, well, interstate commerce, right? I mean, if the kids can't learn, because they're afraid of getting shot at, or kids are getting shot at, how are they going to learn? How are they going to contribute to interstate commerce? I mean, that's not even close to what the framers could possibly have meant. So, you know, the more I think about it, the more I think that in the absence of the 14th Amendment, they could have, I think they could have done this.

1:05:23I think you're really raising a very important point, because think of it this way. I think Joe Sobran has used this example. Think of the income tax. Now, you know, there are some arguments that the income tax amendment was not properly ratified. The point is that people did believe it required an amendment to the Constitution. Now suppose today, let's just say we had a sales tax, we had no income tax. Do you think there'd be anyone who said, wait a minute, before we impose an income tax, we'd better amend the Constitution? Would that happen? They would just do it. Or prohibition is a good example. For Prohibition, when they did that, they amended the Constitution. Whereas today, if they wanted to reenact Prohibition, do you think they'd bother? They'd just come up with, again, they'd use the interstate commerce clause. If everybody's drunk, it impairs interstate commerce so we can prohibit alcoholic beverages.

1:06:11That's what they would do. They wouldn't even bother. It wouldn't even occur to them that an amendment was necessary. So I think that's an extremely thought-provoking and, at the same time, very depressing observation. I have a similar question, but now thinking on this, what do you think the true check is to the central power if it isn't the Constitution? You mean how do we... Well, not even how do we, but even historically, if the Constitution can be interpreted in these poetic constitutional moments, then what effectively is holding back the centralized power? Well, you know, I think I'll give the sort of Rothbardian answer that in a way, you know, there is this, you know, Rothbard always talks about public opinion, and he's written about a lot of people who have made this point that, you know, in a way public opinion does serve as a restraint, I mean, as a constraint on government, because if all of us absolutely committed not to go along with something we just weren't going to obey,

1:07:11then they couldn't do it. I mean, if we all said we're not doing X, Y, or Z, then they can't do it. People are trained from age 5 to age 95 that the government is wonderful and it's just there to help you. It's staffed by disinterested crusaders for justice who are there to protect you from wicked people in the private sector. Then you're not going to raise any objection to it. Why would you? It's a wonderful thing. So I think there was more skepticism of government in the past than there is now. I think that helps to account for it. But ultimately, though, it seems to me that the only thing that limits a central government in our day and age is just simple prudence, what they think they can get away with. There are some things they could not get away with. If they said, we're going to raise all your children for you, I think there are enough parents out there who would say, probably that's a bad idea.

1:08:05Okay, but short of that, it seems to me, and I mean, I think over the past, I don't know, however many years, it's like the federal government has gotten away with so much that they must be shocked at how easy it is to get away with it. You know, I mean, I think, I don't want to, here I am saying I don't want to politicize this too much, here I am, you know. with the Iraq War, that's something that they must be stunned they got away with that. Not only did they get away with it, but they have idiots on TV and radio 24 hours a day who are just repeating Pentagon propaganda as if it's true when it's been refuted about, oh, I don't know, 87,000 times now by other independent sources around the world, and yet people are still repeating it as if it hasn't been refuted And it's like you're living in the world of Pravda and the Kremlin, you know, and these are conservatives supposed to be skeptical of government.

1:09:01The government must be amazed they're getting away with it. And there are so many dupes who just want to be in the good graces of the White House that they will just prostitute themselves for whatever cause. They must be stunned at what they're getting away with. And if people don't respond to these things, then they just get more and more, they get more and more daring. And that's why I so admire the American colonists who fought against the British. Because by comparison, when you look at what the British were doing to them, it's obnoxious, but it's not absolutely like the most appalling human rights offence in the history of mankind. And so Edmund Burke actually said that the interesting thing about the Americans is that they fight in anticipation of oppressions that haven't yet occurred. I mean, that's the spirit that we need. All right, so we'll continue down. Yes, sir?

1:09:47What happened to the flying amendment? Was it overtaken or was it just died on committee? Did it just die on committee or was it rejected? That I don't know offhand. All I know is that obviously it was never ratified. But I don't actually know that. Yes, sir, and then Bob in the back. Oh, and if you have the one, too. I'm just going to say that having been down the road farther than some of you, I think a lot of us have been neutralized by the sense of false security and by Phillips and we're not hungry. and I think that has had a tendency to lull us into complacency, that really what you're doing and what the Institute is doing and many of you may know the John Birch Society, what it's doing and some other conservatives.

1:10:36Those ideas have been planted into the minds of younger people and I'm really impressed to see the younger people here and I'll read, I know what the Mises Institute is doing with a lot of young people. I think it's those things that we've got to push forward, and either with letters to editors, ourselves, you know, we just can't sit back and expect things to happen without our getting involved in it. Right, I know. We've got to be involved in it, and it's my battle just as much as it is anyone else's, and it's probably because my generation and the one before me have not done our job like we should have if we're in the mess we're in today, because we didn't say anything. That's right, that's right. Well, all I'd add to that is that I think that it's a common complaint that many people on our side have had is that, for example, the market is so incredibly resilient and productive that it can continue to create prosperity even when every obstacle is put in its path, it still creates it to the point that people begin to think that it's just normal that, you know, everybody has an air-conditioned car, like this is just a human right everybody would just naturally have, and there's no institutional mechanism necessary to bring this about.

1:11:46That's the way life is. We just live in a world of abundance. People just don't even think about it. Whereas I actually tell my students, I say to them, before you start griping that you've got some second-hand car, let's bear in mind that some of you have a DVD player in your freaking car. Some of you are taking pictures with your phone in the classroom and sending it to somebody in Spain. This does not happen naturally. This doesn't just happen. It happens because of certain institutional frameworks. It happens because of the free market and whatever, and yet we live under a system that whether it's because of wars or inflation or government spending or government policy, whatever, it's constantly wearing that down, wearing that down. But people have just come to, the market is so resilient that people just think that all these things are a perfectly compatible mix of forces, but they can't be forever.

1:12:37Yes, and then Bob. You mentioned about a California decision dealing with equal protection of the 14th Amendment in relationship to the preventing movements of people around and not getting benefits because of it and I was thinking they were just basically trying to prevent people from going on progress if there were royalty traveling around, but I got a question, what's the case site on that? I'll look it up afterward. We'll go out together and we'll get it. Presumably that's one you would want to read. Either to laugh or cry, but we will find the site for that case. Do you still have a question, Bob?

1:13:24Of course, most of us in here are talking about the states where it sounds very reasonable and so on, but I just had the impression that a normal American would think you were incredibly naive or a closet racist. You're just not aware of the awful things that were happening and how necessary the federal government is going to take care of it, and I'm wondering if there's a simple answer. Yeah, I know it, I know it. That's a tough one, that's a tough one, but I mean, this is almost one that it's, it's hard to give a glib answer because it's, I think the, we need the federal government to intervene is the glib answer and sometimes, I sometimes think that the reason that whenever you see somebody who has a car with more than three bumper stickers on it, or a backpack with more than four pins, let's say.

1:14:25It's almost always somebody on the left, isn't it? Almost always. And it's not just because conservatives or libertarians have a better aesthetic sense. I don't want to have bumper stickers all over my car. But it's this thinking that every issue can just be reducible to one sentence. And so that's all I need is I've got a bumper sticker on it. Meat is murder. That's it. Meat is murder. You're killing something and that's it. Just one sentence resolves the whole matter. and so likewise I think this is one of these things that you know requires you kind of sit down and and and hash it over but okay let's just take for example employment discrimination I mean obviously for example the black leadership has a vested interest in arguing that blacks progressed because of political measures obviously they're going to want to advocate that because they're all politicians these people so of course they want to suggest that but I show you Just citing Thomas Sowell that in fact the 1964 Civil Rights Act does not accelerate employment trends for blacks at all.

1:15:31I understand that correlation does not imply causation, but we actually see a slowing of black employment trends in the couple years after the Civil Rights Act as compared to the one year before it. To avoid it, there were huge strides already being made in the 40s and 50s. This isn't just, oh you're naive and you don't understand what the nature of things was. The evidence is just overwhelming and I cite some of it in my civil rights chapter. I think the other factor would be, I think I need to say two things. Number one, the federal government gave protection to slavery throughout the 19th century.

1:16:16This is not an obvious matter of dispute regarding federal government and state's rights. Federal government was imposing the fugitive slave law and the states were ignoring it. But there's also the fact that, you know, look at what forced busing did. And that's a federal government that's, you know, that's a federal government that if you like anti-discrimination law, there's no way to stop the federal government from doing things you don't like, Most normal people did not like busing, even black parents who were about 50-50 about it when it began, became huge opponents of it now. In fact, it was chapters of the NAACP that began petitioning the courts to please, please stop the busing. It has been an absolute catastrophe because it's destroyed black communities, it's destroyed their little micropatriotisms, and it's done absolutely nothing after spending billions of dollars, absolutely nothing for black achievement.

1:17:11Other than as Zora Neale Hurston used to say, Zora Neale Hurston is a great black author, their eyes were watching God. She used to say that what it has done is given the impression that unless I'm sitting next to a white in my classroom, then my classroom is inferior. That's basically what it's done. It's destroyed a whole institutional structure. Zora Neale Hurston, by the way, was of course hated because you're not supposed to say these things. You're supposed to be grateful for all of this. But Zora Neale Hurston was a big supporter of Senator Robert Taft, who was probably about the best presidential candidate I think we had in the past half century. But if only Murray were here to tell us about how the Eisenhower people stole it from Taft at the convention.

1:17:57But anyway, those are just some thoughts off the top of my head. This really is a topic that I want to return to and write about so that I can say that I've got my answer, maybe you don't like it, maybe it's not good enough, but it's an answer and it should be food for thought. Plus, I don't know, I just tend to think most normal black parents today have to be asking themselves, what are the fruits of federal involvement from welfare and everything else? I mean, look around, look at the absolute dysfunction of the black community today, such that if you simply say, you know, things are very bad, everyone pounces on you. Or actually, now, if you're Bill Cosby, you say things are very bad. People say, how courageous you are to say things are bad. Well, for heaven's sake, they obviously are pretty bad.

1:18:44You know, I mean, what's going on here? So, I don't think there's an unambiguous good that has taken place. We don't want people to be oppressed and hurt, but at the same time, you know, sometimes it's cruel to be kind and I think the Charles Murray thesis about what the welfare state has done is, it has to be well taken, it's just overwhelming. Anyway, sorry that's so disjointed, but there's so many things I want to say at the same time. Yes? You have a couple of reasons why there is a problem with the libertarian court, which rights are going to be enforced by the enhancements of the federal government's power. It seems like there is a third reason. I don't know if I get this out right, but it seems like it is a problem with the democratic government in general.

1:19:32I talked with the democratic government and the Austrian Scholars Conference, and they discussed the government's purpose, I guess, and they said that it would enforce equality. But liberty is just as much. It seems that when governments have liberty as their purpose, to the extent that it's possible that, I know it's not impossible, but to the extent that the Iraq war was fought for the liberty of Iraqis, it wouldn't necessarily fail. It seems like in order for a right to be a right, it has to be enforced through case law or interactions with other individuals at the local level in order for it to actually even be a right.

1:20:31He wrote an essay on the Fourteenth Amendment in his book, Original Intentions, and the name of that chapter is Changed Only a Little, and I forget what the subtitle is. He takes the position that the Fourteenth Amendment did have only a modest character, but that there are some people who wanted to impose on it this teleocratic nature, by which I mean that the 14th Amendment wouldn't just be something that would fulfill certain institutional... that it wouldn't just be a limited legal innovation, but it would instead be this sort of ideologically charged instrument that's used to bring about a revolutionary egalitarian agenda. And that, of course, is how it's been used today.

1:21:19I mean, telling the Citadel in South Carolina that they can't be an all-male military academy, what person voting for the Fourteenth Amendment thought that it abolished male-only military academies? The answer, no one. So, what the Fourteenth Amendment is being used for is not for the limited, finite purposes that people originally had in mind, When you talk about the framers and these finite definitions of the Constitution, and then it brings to mind to me the argument that the Constitution is this living, breathing document.

1:22:04And I'm wondering, as a historian, where do you think that comes from? Is it just a means to do whatever you want with the commerce clause? And also, how do you counter people who are just like only one reason about something? I just want to say, well, we're going to do what we want. Right, right. Well, I mean, what if I said to that person, all right, well, you know what, I'm having the police put you in jail for that. And then they would say, well, you have no right to put me in jail for that. I'd say, well, you know, look, the Constitution is a living, breathing document, my friend. And, you know, today the Constitution says that you're going to jail. Well, then you'd say, maybe I don't favor that philosophy. But I think partly it comes from the fact that the... I was just talking to somebody about this before. The Constitution is so difficult to amend and it was deliberately made that way

1:22:52that I think sometimes people would just say, well, it's just too much of a hassle to amend the thing. So instead, let's just go ahead and do what we feel like doing. And that's what Jefferson warned about at the beginning when he said that our unique security lies in, you know, having a written constitution, let's not make it into a blank paper by construction, by construing it so broadly. So I think some of it just comes from an impatience with the amendment process. Other of it comes from an impatience with the idea of, I don't know, just anything that's fixed and definite. The interesting thing, though, is that the colonists, when they were living under the British, the British Constitution to them was a living, breathing, it wasn't a document, but it was a living, breathing tradition, and from the colonial point of view, this was the problem with it, was that it was so living and breathing that the colonists would say, hey, you're violating the British Constitution, and the British would say, no, we're not, and the colonists would say, but yes, you are, I mean, just look at the whole tradition.

1:23:51In the tradition of British history, you're obviously violating the constitution and the British would say, well, you know, if parliament passes it, then it's constitutional. So what's your right? It was so living and breathing, you couldn't pin the thing down. And I think that's part of the reason there's a desire to have a written constitution. So it's precisely to avoid that. But, of course, written constitutions have their own problems. They don't solve everything. When I was a naive child, I used to watch the political conventions in the 1980s, back when you could still sort of watch them, like today, I just think I would just be violently ill if I had to sit through one of the conventions, but it was still weirdly watchable in the 80s. I could watch Reagan giving a speech, I'll admit that, I could watch him giving a speech.

1:24:39I was 12 years old at the 1984 convention, sitting there eating popcorn in my living room, going yeah, Ronald Reagan, you know, I loved it. And I thought that a written constitution solves all these problems, but of course we live under a written constitution and not all problems are solved because somebody has to interpret that document and who's going to wind up interpreting it?

1:25:31This one in particular, because Hans has been trying to say for years, and Murray before him, but Hans has been saying that limited government is impossible. If you want to talk about something that's utopian, this is utopian. Here we'll have this institution with a monopoly on the use of force, and we'll restrain it by a document that it itself will interpret. and this will be kept limited and just limited to the enforcement of individual rights. Now, it could be that no other system could work, okay? It could be that other systems are impractical. That does not take anything away from the fact that Hans' argument is extremely persuasive, particularly when you look at the American experience.

1:26:16How much clearer could you be here that the framers, even Alexander Hamilton, did not intend that every school system should be overseen by a federal judge. I mean, that's quite clear, and yet that's what we live under. And so it makes you think that maybe Hans Hoppe is right, OK? But Hans has already given his seminar, so you can go listen to that and basically get all the ultimate answer to the ultimate questions. By the way, the ultimate answer is 42. That's right. Again, Hitchhiker's Guide to the Galaxy, you should all be reading as well. All right, I think we're more or less out of time, so thank you all very much. We'll talk about the New Deal tomorrow.